R v Arkan & Andrakakos [2002] VSC 577

Supreme Court of Victoria|2002-12-20|Before: NETTLE J

CRIMINAL LAW - sentencing - murder following home invasion - vicious attack on 81 year old man living alone - first offender pleading guilty and second offender found to be guilty - sentence, for the first offender: 21 years with a non-parole period of 17 years; and, for the second offender: 19 years with a non-parole period of 16 years.

On 6 November 2002, Nese Arkan and Peter Andrakakos were arraigned on charges that they did at McKinnon on 22 September 2001 murder Keith Herman. Nese Arkan, pleaded guilty. Peter Andrakakos pleaded not guilty but after a four day trial he was found to be guilty of murder. It is now my task to sentence them both.

The facts of the offences were the subject of detailed examination during the trial and I will not repeat them at length. I restate here only so much as is necessary to place the sentences in context.

At the time of his death Keith Herman was 81 years old, widowed and living alone in his own home at 244 Tucker Road McKinnon. He had retired from full time employment at the age of 60 and thereafter he had developed a home business of supplying coin operated serviced pool tables to a number of hotels. Despite his age, he remained active in the business. The coin operated nature of the business meant that he was in the habit of keeping relatively large amounts of cash at his home.

Keith Herman had been married for 50 years before his wife died of cancer in 1997. Understandably, her death left him profoundly lonely. In an endeavour to fill the void, he joined a local bowls club and he established friendships with some of the lady members of the club. But he could not find in those friendships the sort of companionship which he had for so long shared with his wife. In the end he sought companionship through an escort agency and as a result he met Nese Arkan, who was then a prostitute working with the agency.

Arkan was born on 24 October 1969 and had been a heroin user since 1997 or 1998. At the time at which she met Keith Herman she was on a methadone program, but it does not appear that Keith Herman knew anything of her drug addiction.

After a while Arkan moved into Keith Herman's home and he began to support her. But trouble soon developed, and Arkan moved out only a month or so after arriving. On 1 July 1999 Keith Herman reported to police that jewellery and a fax machine had been burgled from his home and that he suspected that Arkan had committed the theft. Almost a year later, Arkan was charged with that burglary and convicted.

That, however, was not the only burglary in which Arkan was involved. On 12 January 2000 police found Arkan in possession of a wallet stolen from Keith Herman. On 16 March 2000 she was convicted by the Magistrates' Court at Broadmeadows of eight charges of theft, two charges of obtaining property by deception, going equipped to steal, burglary, handling stolen goods, using a drug of dependence and assault with intent to rob. On 18 May 2000 she was convicted of two charges of theft, two charges of obtaining property by deception, making a false document with intent, loitering for the purposes of prostitution in a public place, burglary, handling stolen goods, failing to answer bail and possession of heroin. On 23 February 2001 she was convicted by the Magistrates' Court at Ringwood of burglary, three charges of theft, making a false document with intent, handling stolen goods, two charges of possession of property being the proceeds of crime, using heroin and theft.

In or about May 2001 Arkan formed a relationship with Peter Andrakakos. Andrakakos was born on 12 February 1977 and at the time they met he was only 24 years of age. He too was a heroin user or at least had been a heroin user, and he had been convicted by the Magistrates' Court at Dandenong on 29 July 1998 of trafficking in heroin and of being in possession of property suspected of being stolen or unlawfully obtained. But he had begun an apprenticeship as a motor mechanic during the first half of 2001 and was showing some signs of making a success of it.

Not long after they met, Arkan moved in to live with Andrakakos at Andrakakos' father's home at 27 Murdo Road, Clayton, where Andrakakos had lived with his father and brother for the preceding eight or nine years. For the next five or so months Arkan and Andrakakos experimented together with cocaine and with speed (amphetamines).

On the evening of Friday 21 September 2001 Arkan took cocaine and probably also heroin. Andrakakos took cocaine but probably no heroin. Arkan and Andrakakos both took a number of benzodiazapine tablets. Andrakakos also took a number of amphetamine tablets. Andrakakos later told police that he had taken an equal number of "uppers" (amphetamines) and "downers" ("benzodiazapines") in order to make himself "balanced".

Having thus medicated themselves for the evening, they went out driving in Andrakakos' car. During the course of the drive Andrakakos complained to Arkan of a lack of money with which to buy petrol and he spoke of the possibility of "doing a petrol runner" (which is to say filling the car with petrol at a petrol station and then fleeing without paying for the petrol). Arkan's response was that she knew a place where they could get plenty of money and she directed Andrakakos to drive the car to Lancaster Street, McKinnon only a couple of blocks from Keith Herman's home. From there they walked to Keith Herman's home, arriving at or about 1.00 am on the morning of Saturday 22 September 2001, and then entered the house in darkness through a sunroom towards the rear of the house.

Once inside, Arkan told Andrakakos to be a man and to go into the second bedroom, where Herman was known by Arkan to sleep, and to tie him up and blindfold him so that she could come in unrecognised. This Andrakakos did, having first covered his face with a scarf so that he could not be recognised. A short time later Arkan called out to Andrakakos as to whether she could yet come in, and when told that she could, she entered the room.

Over the following four hours Arkan and Andrakakos individually and collectively subjected Keith Herman to a sustained interrogation, physical torture and mutilation, in an endeavour to prise from him the whereabouts of jewellery and other valuables believed to be kept on the premises.

In the course of the interrogation and torture Arkan and Andrakakos together stood Keith Herman up still bound, and dragged him over to the chest of drawers to get him to point out the drawer in which he had said that his Visa card was kept. At another point a fight broke out between Keith Herman and Andrakakos, when Keith Herman tried to roll from the bed on which he lay with his hands tied. According to Andrakakos, it was then that Keith Herman fell to the floor on his back. Either then or later or both, Andrakakos and Arkan kicked Herman on a number of occasions as he lay on the floor. At some point the blindfold came away from Keith Herman's eyes and it is to be assumed that he recognised Arkan.

At some stage in the interrogation Arkan asked Andrakakos to get out of the room so that she might be alone with Keith Herman, and Andrakakos did as he was asked. There then followed a further period of interrogation and torture conducted by Arkan, using a knife brought by one or other of them from the kitchen to Keith Herman's bedroom. From time to time during that period of interrogation and torture, Andrakakos returned from elsewhere on the property, where he was engaged in systematically searching and vandalising the contents of the house, outbuildings and vehicles. On one such visit to the bedroom he said he saw Arkan use the knife to poke out one of Keith Herman's eyes. On another, he saw Keith Herman endeavour to reach for something to hit back at Arkan, and Andrakakos stopped that by kicking into Keith Herman. On yet another occasion Andrakakos saw Arkan use the knife to cut off part of Keith Herman's penis, while Keith Herman was still alive. According to Arkan she also used the handle of the knife to pummel Keith Herman around the head and face. The following extracts from Arkan's record of interview give some indication of the savagery of the attack:

151. So, you spent the whole four hours with him in that room?

152. Well, what was happening over that period of time?

Just - I just screamed at him, I just assaulted him.

He asked me to help to get up and I wouldn't, I wouldn't help him.

164. Can you describe your action, like, show me the action (with which you used the knife)?

I just held the handle, but I didn't hit him with the sharp end, I hit him with the blunt end. I hit him across the face and I hit him over the head.

167. And do you recall what other strikes you may have inflicted on him?

170. Right. Did you - did you stab him at all apart from - apart from the penis, did you actually stab him at all? Yes I did. 171. And do you recall where that happened? In the eye. 172. Nowhere else? No 140. Right. Well, you tell me what - what you did to him after Peter left? I cut his penis off... 144. Did he resist you? Yes. 145. What did he do? He tried to push me away. 146. And what did you do? I wouldn't let him....

By the processes to which they subjected Keith Herman, Arkan and Andrakakos undoubtedly caused him excruciating pain and terror and, finally, before they could get him to reveal where the valuables were located, they caused him to die from the injuries which they inflicted.

Almost unbelievably Arkan appears not to have had the slightest qualms about her actions. When later asked by police what was going through her mind as she attacked Keith Herman, she replied that she wanted him to suffer. So far as the objective evidence goes, Andrakakos was similarly undisturbed by the proportions of the attack. Neither Arkan nor Andrakakos gave any thought to calling an ambulance or other emergency assistance for Keith Herman. On the contrary, after remaining on the property for several hours, ransacking it of everything which could be found that they thought to be of value, and vandalising the remainder, finally at about 5.00am one or both of them set the house alight and together they made their getaway, leaving Keith Herman's house and his body to be incinerated.

Andrakakos did tell police when later interviewed that when he saw Arkan put out Keith Herman's eye he felt "sick" and claimed that he had said to Arkan that she was "nuts" to do such a thing over only a Visa card, and that she then responded that it was not about the Visa card. But as far as the evidence goes, Andrakakos did not experience any nausea when he wrestled Keith Herman to the floor or kicked into him on the floor or kicked into him when he went to respond to the attack being waged upon him by Arkan or upon seeing Keith Herman's penis hacked off as Keith Herman moaned in agony (as Andrakakos said he did). Nor did Andrakakos express any concern to Arkan about the brutality of what she was doing to Keith Herman or do any thing to restrain her or to assist Keith Herman.

It is not now possible to say how long Keith Herman lived after the injuries were inflicted upon him, and thus how long he remained in the agony which they caused him. But it is certain that he died within hours of Arkan and Andrakakos arriving at his house and before they left it. Although a large part of Keith Herman's house was gutted by the fire set by Arkan or Andrakakos, and Keith Herman's body was partially incinerated in the flames, post mortem examination established with clarity that the injuries inflicted on Keith Herman by Arkan and Andrakakos were sufficient to have caused his death, either of themselves or because of the strain which their infliction placed upon Keith Herman's heart.

Professor Stephen Cordner, Professor of forensic medicine who conducted the post mortem examination of Keith Herman, found sub-dural haemorrhage the consequence of blunt trauma which had been inflicted to the head while Keith Herman was alive and before the fire, and Professor Cordner considered that the sort of impact observed suggested kicking to Keith Herman's head when Keith Herman was already on the ground.

Professor Cordner also found fractures of the eleventh rib on the right side and surrounding bruising which he determined had been caused by blunt trauma during life and before the fire. He said that the blunt impact which caused the damage to the ribs could also have been a kick involving considerable force.

In addition there was bruising deep in the substance of the tongue on the right side caused by blunt impact injury while Keith Herman was alive. That evidence was augmented by the evidence of Doctor Hill, forensic odontologist, who found complex fractures to the right upper jaw extending up and horizontally from the right upper canine and into the base of the sinus.

Professor Cordner found further deep bruising to the diaphragm, right in the centre of the body with two areas of deep bruising within the cavities of the body. He considered that the sort of force required to inflict that level of injury would require at least forcible punching or kicking. He also found seven to ten bruises in the deeper tissue of the back ranging from an inch to two by three inches in diameter. He said that these too were caused by blunt impact and could not have been the result of any simple or single fall onto the ground from a standing height. In Professor Cordner's opinion, there had to be a multiplicity of blows or falls to bring about that condition.

Professor Cordner concluded that, because of the number and location of the injuries, Keith Herman had been assaulted and that it was either these injuries themselves or the effect of the injuries on the already weakened heart of Keith Herman that caused his death before the fire. It was also possible that both effects were exacerbated by the amputation of Keith Herman's penis and the poking out of his eye, although Professor Cordner was not able to say so definitively. The tissue had been destroyed by the fire.

After leaving Keith Herman's house, Arkan and Andrakakos drove immediately back to 27 Murdo Road Clayton with the goods and furnishings which they had stolen and such small amount of Keith Herman's cash as they had been able to locate. On the next day they pawned Keith Herman's stolen television set for $100 at a pawn broker in Oakleigh and stored the remainder of the stolen property in the bedroom which they shared and in a back garden shed.

Two days after the killing, Arkan and Andrakakos were arrested in connection with an attempted theft from a video store in Malvern and, following police investigations, they were interviewed and charged with the murder of Keith Herman. After denying any wrongdoing or involvement each eventually made admissions which showed that both had been in the house with Keith Herman when the injuries were inflicted and when the house was set alight.

Arkan then claimed that she had put out Keith Herman's eye and cut off his penis because he had raped her when she was living in his house some two years before. She also denied starting the fire deliberately and suggested that it might have been due to a cigarette catching on a curtain. Andrakakos maintained throughout that he had had nothing to do with the fire and only learned of its existence when he later read about it in the Herald Sun newspaper. He also maintained that he knew nothing about any rape and that his only intention in going to Keith Herman's house was to get some money.

Murder has long been regarded as the most serious of all crimes, but also as being one in which the circumstances vary to such an extent as between individual cases that an examination of the circumstances will lead to a wide range of sentences, both at the head sentences and non-parole periods[1].

Bearing that in mind, I take as the starting point in this case that the murder of which Arkan and Andrakakos are both guilty was a murder of a most hideous and heinous kind. It was premeditated, at least to the extent that they believed there to be money and valuables on the property and that they went there with the intention of using such level of violence as might prove necessary in order to get the money and the valuables. It was committed in cold blood. It was committed in the home of an octogenarian in the early hours of the morning where it was known that he would be found asleep alone and unarmed. They subjected him to a vicious and sustained attack, first by kicking him and bashing him and then with a knife in ways which most civilised human beings could not begin to imagine. They remorselessly subjected him to excruciating pain and terror. And, finally, at least one of them set his house alight with him in it, in what I am satisfied beyond reasonable doubt was an ill-executed attempt to cover up the evidence of their outrageous wrongdoing.

I turn to the prisoners' personal circumstances. Nese Arkan was born in Turkey as Paula Rodriguez on 24 October 1969 and came to this country with her parents at the age of four. She later changed her name by deed poll to Nese Arkan. Both of her parents are still alive. Her father, whom she has not seen for years, is 57 years of age and a retired professional gambler, and her mother who is 55 years of age, and with whom she is said to have a good relationship, has intermittently worked as a cleaner. Recently her mother was diagnosed as suffering from throat cancer and is undergoing radio therapy. Next year her mother is to undergo further exploratory procedures.

Nese Arkan's childhood was seriously dysfunctional. She was raised in the Broadmeadows area and completed her schooling to year 10 level at Richmond Girls High School and Broadmeadows TAFE. But between the ages of 10 and 13 she was regularly sexually abused by the 19 year old son of a neighbour, and frequently beaten by her father in what her mother described in evidence as attempts to make the child conform to the "old ways". She left school at the age of 15 when she was so severely beaten by her father that she was placed into care at the instance of the State. Thereafter she was accommodated in a halfway house arranged through Community Services, Victoria and between the ages of approximately 15 and 17 she had no contact with her mother or father.

She worked at a McDonald's store for a period of two years and then at the age of 18 years she married a man who was also of Turkish origin, and only five months her senior, and they lived together in Sydney for a period of approximately four years. During that time she bore him three children, who are now aged 14, 12 and 10, but he also beat her and on one occasion so badly that she was admitted to hospital for the stitching of facial wounds which he had inflicted on her. On another occasion she spent three months in a psychiatric ward after attempting suicide because of the way in which he abused her. After four years of marriage she divorced and returned to Melbourne with the three children of the marriage. For the next three years she endeavoured to live as a single mother with them.

Some eight or so years ago she started occasional work with an escort agency and after two years of that work she conceived her fourth child, who is now six years of age. During her confinement her first three children were taken from her by the Department of Human Services for her failure adequately to care for them, and they now live with their father in Sydney. Her fourth child is now also cared for by others.

The loss of her children left her deeply disturbed. In 1998 she began to work as a street prostitute and at much the same time she was introduced to heroin and rapidly became addicted to that substance. Thereafter she tried on at least one occasion to rid herself of her addiction by home detoxification and on another occasion by placing herself under the care of Dr Michael Kozminsky, a well known specialist in the treatment of drug addiction. For some time too she underwent a methadone withdrawal program. But it seems that none of those efforts was effective. At the time of murdering Keith Herman she was still addicted to heroin and using cocaine and speed.

In the plea made on behalf of Arkan by Ms Sutherland, the following contentions were advanced in mitigation:

* First, that the crime of murder was not premeditated, but rather should be seen as opportunistic, in that there was nothing to suggest that any weapons were taken to the house. It ought be concluded, it was said, that Arkan went to the house without murderous intent and with the idea of doing no more than confronting Keith Herman over the hurt which she says she felt as the result of the rape alleged.

* Secondly, that Arkan was significantly affected by drugs and hence not thinking straight and that, once she realised what she had done, she was shocked and appalled by her own actions.

* Thirdly, that the fire should not be regarded as a point of aggravation but rather as the indicia of panic, which came upon Arkan once she began to realise what she had done, and in any event Keith Herman was dead before the fire was lit.

* Fourthly, that Arkan had been frank with the police and made admissions as to matters of which there could have been no evidence without her admissions.

* Fifthly, that Arkan pleaded guilty to murder and thus saved the family the anguish and the State the expense of a trial.

* Sixthly, that Arkan has demonstrated by her cooperation with the police and by pleading guilty, and by her conduct in prison since her incarceration, that she is truly remorseful over the loss of Keith Herman and the hurt which she has inflicted upon his family.

* Seventhly, that Arkan shows signs of being capable of long term rehabilitation by reason of her attempts within prison to free herself of her addiction to drugs of dependence and her engagement with the prison chaplain in a search to come to terms with the wrong which she has done.

I reject the first of those contentions. While it may be that Arkan did not go to the house with murderous intent, I am satisfied beyond reasonable doubt that she went there with the intention of using as much violence as might prove necessary to locate and steal the jewellery and other valuables which she believed to be kept in the house.

I also reject the idea that her conduct was somehow due to a rape, because I am not satisfied, even on the balance of probabilities, that there ever was a rape. In my view it is far more likely that her allegations of rape, made for the first time two years after the alleged event, were a fabrication which she hoped would in some way justify the depravity of her crime.

No doubt rapes go unreported for all sorts of reasons, all the time. Hence, of itself there might not have been a great deal of significance in the fact that Arkan made no complaint about a rape when it is alleged to have occurred. But the absence of contemporaneous complaint is only one of a number of factors which make the allegation of rape untenable. When Arkan was interviewed by police on 17 May 2000 about Keith Herman's allegations of burglary, she said she thought Keith Herman to be a kind man, and she said nothing whatsoever about any alleged rape. The very first time that Arkan ever said anything to anyone about the alleged rape was when Arkan was caught for the murder of Keith Herman and was desperately looking for an excuse. If she had been raped, it is inherently improbable that she would wait two years before resorting to physical violence to get even. And, as much as anything, although Keith Herman may have been fit and active for his age, it is incredible that an eighty one year old man as slightly built as Keith Herman could succeed in forcing himself upon a thirty year old woman as street wise and solidly built as Arkan.

I accept the substance of the second contention, because I think it plain that Arkan was significantly affected by drugs at the time of the murder. And I accept the submission that the sentence to be imposed upon her should make some allowance for that.

That is not to say that the taking of illicit drugs or even drug addiction amounts to an excuse. For except in the few cases in which drugs render an offender incapable of forming the intent to kill or inflict really serious physical injury, which is not this case, neither the effects of drugs nor addiction to their use provides an excuse for murder. It is to say only that within the range of sentencing discretion conferred on me, I consider that the debilitating effects of Arkan's drug dependence is one factor which may be taken into account in her favour.

I reject the third contention. I am satisfied beyond reasonable doubt that the fire was a calculated and callous, even if ineffectual, attempt to cover Arkan's and Andrakakos' involvement in the crime, and I regard it as an aggravating factor.

I accept the substance of the remaining contentions, although with some reservations. It is in Arkan's favour that, once cornered, she confessed to police and frankly disclosed her involvement in the crime. It is also in her favour that she pleaded guilty and thereby saved the State the expense of a trial and the relatives of Keith Herman the further anguish which a trial would have entailed. It is, however, to be noted that her plea was not forthcoming until the morning of the trial, thus implying that it was predominantly motivated by the hope of a lesser sentence, and I consider that the lateness of the plea should thus be reflected in a reduction of the discount which might otherwise be allowed[2].

I also take into account in Arkan's favour the psychological assessment undertaken by Mr Jeffrey Cummins, consulting psychologist, in which it is reported that she is now experiencing overwhelming feelings of guilt about her offending behaviour and that she presents as being genuinely remorseful concerning her offence. In Mr Cummins' opinion, her expressions of remorse are, however, complicated by the fact that she has had a very traumatic background including the physical abuse to which she was subjected by her father and former husband. Mr Cummins has concluded that she has the intellectual ability to develop insight into her psychological state, including her offending behaviour, and that she is now of the view that she would not have done what she did if she had not become a drug user. I read that as meaning that she still has a long way to go.

As against the factors which militate in her favour, there is her previous bad character, her previous life style, her prior convictions, and, despite the sense of shame or remorse which she is said lately to have developed, the limits which appear to me to circumscribe her ability even to comprehend the enormity of the crime which she has committed.

One may pity Arkan for the horrendous childhood to which she was subjected and the brutal treatment meted out to her during her marriage, and for the loss of her children. Each of those things may perhaps also explain the sociopathic proportions of her conduct in the murder of Keith Herman, and the recidivism demonstrated by her previous encounters with the law. But equally they lead me to the view that any chance of rehabilitation is at best a long term possibility and more probably a forlorn hope. Arkan's propensity to offend and re-offend is a danger from which the public needs to be protected.

Peter Andrakakos was born on 12 February 1977, the eldest of two sons. His upbringing was strained. His parents separated in 1981 and his mother subsequently remarried when he was five. Andrakakos went to live with his mother and his stepfather and the children of both marriages. The stepfather was, however, a violent man, and subjected Andrakakos' mother to violence, and Andrakakos was often involved as a child in attempting to protect his mother from that violence. At the age of 16 Andrakakos left that household and returned to live with his father.

Andrakakos was educated in Broadmeadows in the Catholic primary school system but moved to Parkdale Secondary School for his secondary education. It is said that he found himself ostracised in that institution, because of his Greek ethnicity. After completing year 10 he moved to Oakleigh Secondary School and he there completed year 12 with and TER score of 85%.

At the age of 18 Andrakakos became engaged to be married to a girl of a similar age but when the engagement was called off after about 12 months he was so emotionally affected by the loss of the young woman's support that he drifted into the drug scene. In the years which followed he became an intravenous user of drugs and contracted Hepatitis C. It was during that period that he was convicted of the trafficking offence to which I earlier referred.

In 1999 Andrakakos returned to Greece in an endeavour to break away from the use of drugs and he managed to do that for the year that he was there. But he left Greece in order to escape national service obligations, and upon his return to Melbourne in 2000 he returned to drug use and desultory attempts at detoxification.

Despite his addiction to drugs Andrakakos has at most times managed to work and thus to support himself through a succession of jobs, and in July 2001 he commenced an apprenticeship as a motor mechanic with an eastern suburbs garage, and by all accounts he was regarded as a reliable and hard working apprentice.

Andrakakos did not plead guilty and there is little else to take away from the gravity of his offence. His trial was contested and there was no indication in his records of interview or in anything which was said or done on his behalf in the course of trial that suggested any sense of contrition. On the contrary, his attitude when interviewed by police was that because he had not held the knife he was guilty of no more than robbery. And that was exactly the way that his defence was conducted throughout the trial.

It may perhaps be said in Andrakakos' favour that he was considerably younger than Arkan and to some extent under her spell. Certainly, I take the view that she may have motivated him to do things on the night of Keith Herman's murder which he might not otherwise ever have done. The Crown case was put to the jury on the basis that Andrakakos was guilty either as having acted in concert or extended concert or on the basis that he had aided and abetted Arkan. Hence, it is possible that the jury considered Andrakakos to be just as much to blame as Arkan. But the evidence points the other way. Having regard to the apparently dominant role played by Arkan, I think it probable that Andrakakos was convicted as an aider and abetter.

I note, however, the observations of the Court of Appeal in DPP v SJK[3], that in some circumstances the culpability of an aider and abettor can properly be regarded as being at least equal to, if not significantly greater than, the principal offender, and I observe that, although in one sense Arkan might be seen as the ring leader, she could not have done what she did without Andrakakos' active assistance. Taken overall I do not regard Andrakakos' culpability as very much less than Arkan's

In the plea made on behalf of Andrakakos by Mr Montgomery, the following were identified as considerations said to bear in favour of Andrakakos on the sentence which should be imposed:

* First, that at the time of the offence Andrakakos was affected by cocaine and uppers and downers.

* Secondly, that Andrakakos' role in the murder was very much secondary to Arkan's and that his guilt really does not rise above failing to stop Arkan doing what she did.

* Thirdly, that there is nothing to show that Andrakakos lit the fire or knew that it had been lit.

* Fourthly, that Andrakakos has shown remorse by what were described as full and frank admissions to the police, including admissions of matters which were the essence of the Crown's case against Andrakakos at trial.

* Fifthly, that Andrakakos has only one prior conviction, and that the amount of drugs over which he was convicted of trafficking was only of street quantity, and since that offence occurred in 1997 there has been no suggestion of further offences.

* Sixthly, that Andrakakos' prospects of rehabilitation are good having regard to his age and the support of his family.

I accept the first of those submissions, just as I have done in Arkan's case, and make an allowance in Andrakakos' favour for the debilitating effects of the drugs to which he was subject.

I also accept the second submission, but only to the extent that I cannot be satisfied beyond reasonable doubt that the jury convicted Andrakakos on any basis other than as an aider and abetter. For the reasons already given, I do not accept that Andrakakos' culpability is a great deal less than Arkan's.

I am unable to determine who among Arkan and Andrakakos lit the fire, but I consider that it is clear beyond reasonable doubt that Andrakakos knew of the fire and was prepared to go along with it. His involvement to that point, including his involvement in watering down surfaces to endeavour to cover finger prints, his several returns to the bedroom, the timing of the start of the fire relative to his departure from Keith Herman's house, and Andrakakos demonstrated propensity to lie to police about most matters[4], leaves me with no doubt that Andrakakos knew as much about the fire as he was undoubtedly shown to have known about every other aspect of the night.

I reject the fourth submission. I have been unable to discern any sign of remorse in Andrakakos either during the trial or since. He did not make full and frank disclosures to the police but, on the contrary, lied repeatedly until confronted with the fact that Arkan had made disclosures. And even then Andrakakos' principal concern appeared to be to shift as much blame as possible from himself to Arkan, regardless of the facts.

I accept that it is significant that Andrakakos has only once before been convicted of an offence. But having regard to his confessed lifestyle, I think that it carries considerably less weight than ordinarily it would. The fact is, and indeed he relies upon it in mitigation of his role in the offence, that for the best part of the eight years which led up to the offence he lived in the sleaze and haze of the drug world with all the unfortunate and criminal consequences which that was likely to attract. I consider that the chances of Andrakakos re-offending are significant and that the prospects of his rehabilitation are conjectural.

The law requires that the sentences to be imposed upon each of the prisoners reflect the nature and gravity of their crimes. In the circumstances of this case it calls out for condign punishment. The sentences to be imposed upon each of Arkan and Andrakakos are to be seen as a manifestation of the Court's denunciation of their crimes[5] and stand as a deterrent to others who would be tempted to engage in similar criminal conduct. The courts have a duty to impose sentences appropriate to uphold the sanctity of human life and to deter those who would destroy life by resort to criminal violence.[6]

Despite the suggestion that Arkan's attack on Keith Herman was motivated by rape, I am not satisfied even on the balance of probabilities[7] that Keith Herman ever raped Arkan or that Arkan's attack on Keith Herman was the result of a belief that he had.

It is plain that both Arkan and Andrakakos were addicted to or at least in the habit of taking significant quantities of drugs and I regard it as overwhelmingly probable that their addiction was the real reason for what they did. They both had convictions for the illicit use of drugs and on their own admissions they had taken significant quantities of drugs on the night of the murder. Indeed it has been said by their counsel that it ought be concluded the real reason for the search for money at Keith Herman's home was to feed their drug habit. And the conclusion that they were affected by the drugs which they had taken that evening does go some way to providing an explanation for what would otherwise be an inexplicably cruel and inhuman attack.

But whatever be the real underlying reason for the crime, be it money or drugs or a combination of both or something else, it can in no way justify the crime or do much to relieve the unrelenting sense of loss and pain and puzzlement inflicted on Keith Herman's son and daughter and daughter in law, of which they have written in their victim impact statements. Keith Herman's family search without result for answers as to why the man they loved so much and who offered offence to no one should be the recipient of Arkan's and Andrakakos' atrocious malevolence.

Nese Arkan, bearing in mind the gravity of your offence, the aggravating and mitigating considerations to which I have made reference, the need to balance the competing considerations of punishment, denunciation, deterrence and rehabilitation which are laid down in the Sentencing Act, and current sentencing practices, I have concluded that the sentence to be imposed upon you is that you be imprisoned for a period of twenty-one years and that you serve not less than seventeen of those years. I add that it is only because of your plea of guilty that I have been dissuaded from imposing a considerably greater sentence.

Peter Andrakakos, in your case I consider that the sentence to be imposed upon you should be something less than the sentence imposed on Arkan, because of your lesser degree of culpability and responsibility for the offence and because your previous character is somewhat better than hers. But, unlike Arkan, you did not plead guilty to the offence and I have been unable to discern any other sign of remorse on your part. The difference between her sentence and your sentence is to be limited accordingly. Bearing in mind the competing sentencing considerations laid down in the Sentencing Act and giving full weight to your youth, character and prospects of rehabilitation, I have concluded that the nature and gravity of your offence and the need for manifest denunciation and deterrence requires that you be imprisoned for a period of nineteen years and that you serve not less than sixteen of those years

In the result, in the case of the prisoner Nese Arkan:

* I sentence you, Nese Arkan, to twenty-one years imprisonment

* I fix a period of seventeen years as the period you must serve before becoming eligible for parole.

* I declare that the period to be reckoned as already served under the sentence is [452] days inclusive of today's date and I direct that there be noted in the Court's records the fact that the declaration has been made and its details.

In the case of the prisoner, Peter Andrakakos

* I sentence you, Peter Andrakakos, to nineteen years imprisonment.

* I fix a period of sixteen years as the period you must serve before becoming eligible for parole.

[1] DPP v Heblos [2000] VSCA 229 at [33]

[2] See R v RND [2002] VSCA 192 at [17] to [19], per Eames, JA

[3] [2002] VSCA 131 esp. at [46]- [48]

[4] Upon which I place reliance only on credibility, and not as going to any consciousness of guilt.

[5] DPP v SJK [2002] VSCA 33 at [64]

[7] As I would have to be if I were to take it into account as an ameliorating factor: Cheung v The Queen [2001] HCA 67 at [14]

At a glance

Court

Decision date

Before

Source

Judgment (102 paragraphs)

Parties